International law, Sixth edition
part of a widespread or systematic activity, and to be committed against
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International Law MALCOLM N. SHAW
part of a widespread or systematic activity, and to be committed against any civilian population, thus any reference to nationality is irrelevant. However, it is important to maintain a clear distinction between civilian and non-civilian in this context. The Trial Chamber in the Marti´c case noted that one could not allow the term ‘civilian’ for the purposes of a crime against humanity to include all persons who were not actively participating in combat, including those who were hors de combat, at the time of the crimes, as this would blur the necessary distinction between combatants and non-combatants. 220 Of course, any act of genocide by definition will constitute also a crime against humanity, although the reverse is clearly not the case. What is required for crimes against humanity is an ‘attack’ and this has been broadly defined. In the Akayesu case, for example, this term was defined as an unlawful act of the kind enumerated in Article 3(a) to (i) of the Statute, like murder, extermination, enslavement etc. An attack may also be non- violent in nature, like imposing a system of apartheid, which is declared a crime against humanity in Article 1 of the Apartheid Convention of 1973, or exerting pressure on the population to act in a particular manner, may come under the purview of an attack, if orchestrated on a massive scale or in a systematic manner. 221 It is also necessary for the alleged perpetrator to be aware that his act was part of a broader attack. The Appeals Chamber in its jurisdiction decision in Tadi´c concluded that to convict an accused of crimes against humanity, it had to be proved that the crimes were related to the attack on a civilian population and that the accused knew that his crimes were so related. 222 This is so even if he does not identify with the aims of the attack and his act was committed for personal reasons. 223 219 IT-96-23&23/1, 2002, para. 98. 220 IT-95-11-T, 2007, paras. 55–6. 221 ICTR-96-4-T, 1998, para. 581. 222 IT-94-1-A, 1999, para. 271, 124 ILR, pp. 61, 173. 223 Ibid., paras. 255 ff. i n d i v i d ua l c r i m i na l r e s p o n s i b i l i t y 439 Aggression 224 Aggression is recognised as a crime in customary international law. Article 6 of the Nuremberg Charter defined its jurisdiction as includ- ing ‘(a) Crimes against peace. Namely, planning, preparation, initiation, or waging of a war of aggression or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing’ and a number of defendants were convicted of offences under this head. General Assem- bly resolution 95(1) affirmed the principles recognised by the Nuremberg Charter and its judgment. Aggression was termed the ‘supreme interna- tional crime’ in one of the judgments. 225 The Tokyo Charter included the same principle as did Allied Control Council Law No. 10. General Assem- bly resolution 3314 (XXIX) of 14 December 1974 contained a definition of aggression in contravention of the Charter. 226 The crime of aggression is referred to in article 5 of the Statute of the ICC, but in no other such instrument. Indeed, article 5(2) provides that the Court cannot exercise jurisdiction over the crime of aggression until a provision is adopted defin- ing the crime and setting out the conditions under which the Court may exercise jurisdiction with respect to it. The delay in achieving this has been caused by several problems. The first is that, unlike the other substantive international crimes, aggression is a crime of ‘leadership’ and necessarily requires that it be determined as an initial point that the state, of whom the accused is a ‘leader’ in some capacity, has committed aggression. This is a wholly different proposition from asserting the responsibility of individ- uals for genocide, war crimes or crimes against humanity. It is also unclear what differences may exist between the state’s act of aggression and the individual’s crime of aggression. Secondly, article 5(2) of the ICC Statute provides that the conditions for the exercise of the Court’s jurisdiction must be consistent with the relevant provisions of the UN Charter. The Security Council has the competence under Chapter VII of the Charter 224 See e.g. Cryer et al., Introduction to International Criminal Law, chapter 13; and Werle, Principles of International Criminal Law, part 6. See also Y. Dinstein, War, Aggression and Self-Defence, 4th edn, Cambridge, 2005, and see further below, chapter 22, p. 1240. 225 See Judgment 186, 41 AJIL, 1947, p. 172. 226 See also the General Treaty for the Renunciation of War (the ‘Kellogg–Briand Pact’), 1928, which condemned recourse to war as an instrument of international policy; article 1 of the International Law Commission’s Draft Code of Offences against Peace and Security, 1954, and article 1(2) of the revised Draft Code adopted in 1996. Article 16 of the latter instrument provides that a leader who as leader or organiser actively participates in or orders the planning, preparation, initiation or waging of aggression committed by a state shall be responsible for a crime of aggression. 440 i n t e r nat i o na l l aw to determine whether an act of aggression has taken place and it has been argued that a prior determination by the Council is necessary before the Court may exercise jurisdiction with regard to individual responsibility for aggression. This has been contested. 227 However, the question of the relationship between the competences of the Council and Court respec- tively is unsettled. These matters are currently being negotiated by the Assembly of States Parties to the Rome Statute. 228 Download 7.77 Mb. Do'stlaringiz bilan baham: |
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